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THE JOURNAL OF COLLEGE AND UNIVERSITY LAW FOCUS ON INTERCOLLEGIATE ATHLETICS SYMPOSIUM Sports Reform: College Athletics in Flux CASE COMMENT Par for the Female Course: Cohen v. Brown University Mandates an Equal Playing Field in Intercollegiate Athletics Jill Mulderink NOTE Coercion Theory and the State Action Doctrine As Applied in NCAA v. Tarkanian and NCAA v. Miller Betty Chang ARTICLE Due Process in the Accreditation Context: A Reply Mark L. Pelesh NOTE United States v. Brown University and a New Proposal to Discern Whether Certain Financial Aid Constitutes "Trade or Commerce" Nolan Koon PUBLISHED BY THE NATIONAL ASSOCIATION OF COLLEGE AND UNIVERSITY ATTORNEYS AND THE NOTRE DAME LAW SCHOOL VOLUME 22 SUMMER 1995 NUMBER 1 NATIONAL ASSOCIATION OF COLLEGE AND UNIVERSITY ATTORNEYS The National Association of College and University Attorneys (NACUA), established in 1961, is a nonprofit organization serving the needs of attorneys representing institutions of higher education. NACUA now serves nearly 2,500 attorneys who represent some 1,300 campuses (about 660 institutions). The Association’s purpose is to improve the quality of legal assistance to colleges and universities by educating attorneys and administrators on legal issues in higher education. NACUA accomplishes this goal through its publications, conferences, and workshops. NACUA also operates a clearinghouse for references through which attorneys share knowledge and work products on current legal problems. With its headquarters in Washington, D.C., NACUA monitors govern- mental developments having significant legal implications for its member institutions, coordinates the exchange of information concerning all aspects of law affecting higher education, and cooperates with other higher education associations to provide general legal information and assistance. Accredited institutions of higher education in the United States and Canada are the primary constituents of NACUA. Each member institution may be represented by several attorneys, any of whom may attend NACUA meetings, perform work on committees, and serve on the Board of Directors. Approximately one-half of NACUA member institutions are private, nonprofit institutions of higher education with enrollments below 5,000 students and current fund expenditures below $50 million per year. Collectively, these institutions enroll approximately 650,000 students. The remaining member institutions, whose budgets range up to $4 billion per year, collectively enroll more than six million students. NACUA 1995-96 Board of Directors President Joanne Blauer Cornell University Michael C. Weston Northwestern University Eileen K. Jennings Central Michigan University David R. Scott Rutgers, The State University President-Elect : ae mt : B L. Shiel U ty of M Paul J. Ward Arizona University System — nis ee 1994-97 First Vice President l B Id University »*" ~incinnati S. Andrew Schaffer. New York University Falorea B. Devineey Board of Regents of the Sarond Vice President University System of Georgia Mary Ann Connell University of Mississippi JohnE. Hart University of Dayton William D. Stempel Yale University Secretary Genevieve Graffeo Stubbs Thomas J. Flygare, Texas A&M University System University System of New Hampshire, New Hampshire College, New Hampshire 1995-98 College and University Council Robert F. Curran, S.J. University of San Francisco Treasurer Byron H. Higgins University of Illinois Bowling Green State University California State University Immediate Past Presidents Mary E. Kennard American University Lee B. Liggett University of Houston System Benjamin E. Rawlins Members at Large University of North Carolina 1993-96 General Administration Adrian Arima Stanford University NOTRE DAME LAW SCHOOL Notre Dame Law School, the oldest Roman Catholic law school in the United States, was founded in 1869 as the nation’s third law school. The Notre Dame program educates men and women to become lawyers of ex- traordinary professional competence who possess a partisanship for justice, an ability to respond to human need, and a compassion for their clients and colleagues. Notre Dame Law School equips its students to practice law in every state and in several foreign nations. The school raises and explores the moral and religious questions presented by the law. The learning program is geared to skill and service. Thus, the school is committed to small classes, especially in the second and third years, and emphasizes student participation. In order to further its goal of creating lawyers who are both compe- tent and compassionate, Notre Dame Law School is relatively small. The Admissions Committee makes its decisions based on a concept of the ‘‘whole person.’’ The Law School offers several joint degree programs, including M.B.A./J.D. and M.Div./J.D. Notre Dame Law School is the only law school in the United States that offers study abroad for credit on both a summer and year-round basis. Instruction is given in Notre Dame’s own London Law Centre under both American and English professors. Notre Dame Law School serves as the headquarters for The Journal of College and University Law. The Center for Civil and Human Rights, the Institute for International Peace Studies, the National Institute for Trial Advocacy and the Thomas J. White Center on Law and Government all enrich the Notre Dame Law School experience. The University of Notre Dame The Notre Dame Law School Officers of Administration Officers of Administration President Dean Rev. Edward A. Malloy, C.S.C., Ph.D. David T. Link Provost Associate Dean Timothy O’Meara, Ph.D. Walter F. Pratt, Jr. A , é Director of the Law Library Executive Vice President and Aameteen een a Roger F. Jacobs, M.A.L.S., J.D. VAiscseo cPiraetsei dePnrto voasntd sApssooctia tes tDeea en n i Roger A. Schmitz, Ph.D. ssistan , Patricia C. Leonard THE JOURNAL OF COLLEGE AND UNIVERSITY LAW EDITORIAL BOARD Barbara A. Lee, Chair Associate Provost for Academic Affairs Rutgers, The State University of New Jersey Vence L. Bonham Thomas P. Hustoles Senior Advisor to the Dean Miller, Canfield, Paddock Michigan State University & Stone, P.L.C. Don R. Byrnes David T. Link Vice President for Student Advisory Member, Management Ex Officio Houston Baptist University Dean and Professor of Law Notre Dame Law School Fernand N. Dutile Advisory Member Constance Neary Associate Dean and Claims Counsel Professor of Law United Educators Ins. Notre Dame Law School Risk Retention Group, Inc Sally S. Harwood John H. Robinson Associate General Counsel Advisory Member Michigan State University Professor of Law Richard Hasselbach Notre Dame Law School Office of Legal Counsel William D. Stempel Michigan State University Deputy General Counsel Yale University William P. Hoye Advisory Member Peter N. Swan Associate Vice President Assistant to the President and Counsel, for Legal Affairs Concurrent Professor of Law University of Oregon Notre Dame Law School THE JOURNAL OF COLLEGE AND UNIVERSITY LAW EDITORIAL STAFF FACULTY EDITORS Professor John Robinson Professor William Hoye ASSOCIATE FACULTY EDITOR ASSISTANT FACULTY EDITOR Philip Faccenda Carol Kaesebier STUDENT EDITOR Catherine Pieronek Indiana EXECUTIVE EDITOR Mary Jo Naples Ohio LEAD ARTICLES EDITOR LEAD NOTES EDITOR Ronald Miller A. Katrina Noznesky Washington CANADA ARTICLES EDITORS NOTES EDITORS Matthew Donohue Erin Burke New York Pennsylvania Wendy Hernandez Kristin Graff Arizona Colorado Christopher Pardi David Kennedy Michigan Kansas Brian Sagrestano Nolan Koon New Jersey New Hampshire Walter Saurack New York Karen Woods Illinois MANAGING EDITOR Jeffrey Swanson New Jersey Book REVIEW EDITOR SYMPOSIUM EDITOR James Shea William Walsh Connecticut California SECOND-YEAR STAFF Charles Cooper Anthony Hartmann Maureen O’Connor Ohio Pennsylvania Illinois John Day Steven Hieatt Marie Prein Virginia Ohio Michigan Margaret Egan Richard Holzheimer John Refermat New York Virginia New York Maureen Fitzgerald Jeff Kopp Charles Roth New York Michigan New York Jennifer Fraley Steven Malynn Douglas Salaway Ohio California Arizona Caryn Geraghty Jill Mulderink Washington Illinois ASSISTANT TO THE EDITORS Tricia Stewart The Journal of College and University Law (ISSN 0093-8688) The Journal of College and University Law is the official publication of the National Association of College and University Attorneys (NACUA). It is published quarterly and in- dexed in Callaghan’s Law Review Digest, Contents of Current Legal Periodicals, Contents Pages in Education, Current Index to Journals in Education, Current Index to Legal Periodicals, Current Law Index, Index to Current Periodicals Related to Law, Index to Legal Periodicals, Legaltrac, National Law Review Reporter, Shepard’s Citators, and WESTLAW. POSTMASTER: Send changes of address requests to The Journal of College and Univer- sity Law in care of Rothman & Company, 10368 W. Centennial Road, Littleton, CO, 80123. Second Class postage paid at Washington, D.C., and at additional mailing offices. Copyright © 1995 by National Association of College & University Attorneys Cite as —— J.C. & ULL. Library of Congress Catalog No. 74-642623 Except as otherwise provided, The Journal of College and University Law grants permission for material in this publication to be copied for use by nonprofit educational institutions for scholarly or instructional purposes only, provided that 1) copies are distributed at or belce-w cost, 2) the author and the Journal are identified, and 3) proper notice of the copyright appears on each copy. If the author retains the copyright, permission to copy must be obtained directly from the author. ABOUT THE JOURNAL AND ITS EDITORS The Journal of College and University Law is the only law review entirely devoted to the concerns of higher education in the United States. Contributors include active college and university counsel, attorneys who represent those institutions, and education-law specialists in the academic community. The Journal has been published quarterly since 1973 and now boasts a national circulation of more than 3,600. In addition to scholarly articles on current topics, the Journal of College and University Law regularly publishes case comments, scholarly com- mentary, book reviews, recent developments, and other features. In 1986, the Notre Dame Law School assumed publication of the Journal, which had been published at the West Virginia University College of Law from 1980-1986. Correspondence regarding publication should be sent to William P. Hoye, Faculty Editor, The Journal of College and University Law, Notre Dame Law School, Notre Dame, IN 46556. The Journal is a refereed publication. The views expressed herein are to be attributed to their authors and not to this publication, the National Association of College and University Attorneys or the Notre Dame Law School. The materials appearing in this publication are for information purposes only and should not be considered legal advice or be used as such. For a special legal opinion, readers must confer with their own legal counsel. THE JOURNAL OF COLLEGE AND UNIVERSITY LAW Volume 22 Summer 1995 Number 1 ARTICLES TABLE OF CONTENTS FOCUS ON INTERCOLLEGIATE ATHLETICS Sports Reform: College Athletics in Flux 1995 Symposium This issue of The Journal includes the text of the speeches of the symposium on intercollegiate athletics reform, which was held at the University of Notre Dame on February 24-25, 1995 and was spon- sored jointly by The Journal and the Notre Dame Law School. It features discussions on subjects such as government attempts at regulating intercollegiate athletics, trends in NCAA regulation, and Title IX, as well as speeches and articles that address intercollegiate athletics from historical and sociological per- spectives. CASE COMMENT Par for the Female Course: Cohen v. Brown University Mandates an Equal Playing Field in Intercollegiate Athletics Jill Mulderink NOTE Coercion Theory and the State Action Doctrine As Applied in NCAA v. Tarkanian and NCAA v. Miller Betty Chang Due Process in the Accreditation Context: A Reply Mark L. Pelesh 175 In a reply to Due Process in the Accreditation Context, published in the Summer 1994 issue of The Journal, the author contends that consfitutional due process require- ments should remain inapplicable to accrediting agencies. The article first reviews the recent trend of Supreme Court decisions on due process along with other cases in which the applicability of constitutional due process require- ments to the accreditation process has been considered and then examines the 1992 Amendments to the Higher Education Act. The author concludes that Due Process ad- vocates unwarranted, unnecessary, and deleterious pro- cedural innovations in the accreditation process. NOTE United States v. Brown University and a New Proposal to Discern Whether Certain Financial Aid Constitutes "Trade or Commerce" Nolan Koon SPORTS REFORM: COLLEGE ATHLETICS IN FLUX INTRODUCTION AND WELCOME Reverend William Beauchamp, C.S.C. ............csscesccsscesececeees HISTORICAL PERSPECTIVE OF AMATEURISM Dr. William Gerberding GOVERNMENT ATTEMPTS AT REGULATION Ms. Deborah Katz NCAA REGULATION OF COLLEGE ATHLETICS Mr. Dan Dutcher Ms. Janet Justus Ms. Deborah Brake REFORM AND RENEWAL IN COLLEGE SPORTS Reverend Theodore M. Hesburgh, C.S.C. ............c0cceecceeceeeees Dr. Judith Albino COLLEGE ATHLETICS AS A VEHICLE FOR SOCIAL REFORM Dr. Michael Oriard Ms. Kelly Landry Dr. Wilbert Leonard ROUND TABLE DISCUSSION ON COLLEGIATE ATHLETICS REFORM Mr. James Delaney Dr. Allen Sack Mr. Christopher Morris Mr. Murray Sperber** * Mr. Glaizer requested that his remarks not be published. The Journal regrets any inconvenience this may cause. ** Due to technical difficulties, the taped remarks of Mr. Davidson and Mr. Sperber could not be transcribed for publication. The Journal regrets any inconvenienc2 this may cause. JOURNAL OF COLLEGE AND UNIVERSITY LAW [Vol. 22, No. 1 INTRODUCTION AND WELCOME WILLIAM BEAUCHAMP, C.S.C., EXECUTIVE VICE PRESIDENT, THE UNIVERSITY OF NOTRE DAME Introduction by Mr. Heisler Good Morning and welcome to the University of Notre Dame. I am John Heisler, the Sports Information Director at the University. On behalf of the Notre Dame Law School and The Journal of College and University Law, welcome to a Sports Law Symposium entitled ‘‘Sports Reform: College Athletics in Flux.’’ Over the next day and a half you will be hearing from experts in the area of sports law, university administration, and athletics administration, as well as from three representatives of the NCAA. Their assign- ment is to analyze the current state of college’ athletics and its existence, not only as a forum for our nation’s student athletes, but also as one of the country’s major entertainment vehicles. They will look at relationships between the National Collegiate Athletic Association (NCAA) and its member institutions and how those relationships have changed since the NCAA, now with more than eight hundred schools under its banner, first began to administer college athletic championships back in 1921. Our first speaker this morning brings with him not only a law degree, but also extensive experiences in administration of both athletics and academics. Executive Vice President of the University of Notre Dame since 1987, he also is a member of the faculty, teaching business law in the College of Business Administration, and is the Chairman of the faculty board in control of athletics at the University. After receiving his degree from the Notre Dame Law School, he returned to Alma, Michigan to work as an attorney in a local general practice law firm. Following his ordination to the Roman Catholic priesthood in 1982, he served as the executive assistant to his predecessor, executive vice president Reverend Edmund P. Joyce, and subsequently to then-president Reverend Theodore M. Hesburgh. He is involved in a variety of local charitable and civic organizations including United Way, Project Future, Junior Achievement, National Alcoholism of Michiana, the Saint Joseph Care Group, and the Logan Foundation. He is also a member of the Olympic Sports Liaison Committee of the NCAA. Please welcome the executive vice president of the University of Notre Dame, Father William Beauchamp. Remarks by Rev. Beauchamp, C.S.C. First, on behalf of Father Malloy, the president of the University, and all of my colleagues at the University, I welcome our guests to 1. The terms ‘‘colleges,’’ ‘‘universities,’’ and ‘‘institutions’’ are used interchangeably to denote all institutions of higher education.